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KHET SINGH V. UNION OF INDIA [2002] RD-SC 154 (20 March 2002)

R.P. Sethi & K.G. Balakrishnan

K.G. Balakrishnan, J.

This appeal is directed against the judgment of the High Court of
Rajasthan challenging the conviction and sentence of the appellant
under
Sections 17, 18 & 21 of the Narcotic Drugs and Psychotropic Substances Act,
1985 (hereinafter referred to as "NDPS Act").
Appellant had been sentenced to
undergo 10 years' rigorous imprisonment and a fine of Rs. 1 lakh and in default
of payment of fine
further to undergo two years and six months' rigorous
imprisonment.

Appellant Khet Singh was tried along with one Kanhaiya Lal for the
aforesaid offences and Kanhaiya Lal was acquitted by the Sessions
Court. The
case of the prosecution is that on 6.5.1989, PW6 Shri Narain Das Lakhara,
Inspector, Customs Department, Jaisalmer, along
with the Superintendent of
Customs and two other constables was proceeding on patrolling and checking
duty towards Ramgarh. Near
Brahamsar crossing, they started checking several
motor vehicles as it was suspected that there might be drug trafficking. In truck
no. RJC 1472, the appellant was found sitting with a cloth basket in his hand.

During the search, a polythene bag was found in the basket which contained
some black substance suspected to be opium. Appellant
Khet Singh and
Kanhaiya Lal along with the cloth basket were brought to the Office of the
Customs. In the office of the Customs,
the opium was seized, samples were
taken from it and were sealed. Appellant and Kanhaiya Lal were questioned.

The appellant stated that he had purchased the seized opium from Kanhaiya Lal.

The samples were sent for chemical examination and the report from the
Forensic Science Laboratory revealed that the sample was 'opium'.

The appellant contended before the trial court that there was violation of
Section 50 of the NDPS Act as the search and seizure
was not made in the
presence of a Gazetted Officer or a Magistrate and that the appellant was not
told in advance that he had a right
to demand that the search to be effected shall
be in the presence of a Magistrate or a Gazetted Officer. This plea was rejected
on the ground that search and checking was being conducted of the vehicles and
it was during the course of this general search that
the appellant was found
travelling with the opium and hence Section 50 of the NDPS Act is not applicable
and that the same would
apply in the case of a search on the person of the
appellant. The same plea was raised before the High Court and was rightly
rejected.

The learned Counsel, Mr. Doongar Singh who appeared on behalf of the
appellant raised a contention that though the search and seizure
was effected
near Brahamsar crossing, no mahazar was prepared and no samples were taken
from the contraband article; the seizure
memo was prepared in the Office of the
Customs Department and the samples were also taken at the Office of the
Customs Department,
and that this has caused serious prejudice to the
appellant. According to the appellant's Counsel, the seizure memo should have
been prepared at the place where the contraband article was seized from the
accused. He further pointed out that the recovery was
effected but the
contraband article was not sealed at the spot and the truck along with the driver
and the appellant were brought
to the office of Customs Department at Jaisalmer
and that there were about 10 other persons in the truck and all of them were
allowed
to go. The learned counsel further contended that had the search
mahazar been prepared at the spot, it could have been satisfactorily
proved that
it was from the appellant's possession that the bag was taken and it is doubtful
whether the bag belonged to the appellant
or to any other passengers.

It is true that the search and seizure of contraband article is a serious
aspect in the matter of investigation related to offences
under the NDPS Act.

The NDPS Act and the rules framed thereunder have laid down a detailed
procedure and guidelines as to the manner in which search
and seizure are to be
effected. If there is any violation of these guidelines, Courts would take a serious
view and the benefit
would be extended to the accused. The offences under
NDPS Act are grave in nature and minimum punishment prescribed under the
Statute
is incarceration for a long period. As the possession of any narcotic
drugs or psychotropic substance by itself is made punishable
under the act, the
seizure of the article from the appellant is of vital importance.

Section 51 of the NDPS Act provides that the provisions of the Code of
Criminal Procedure, 1973 shall apply in respect of warrants,
arrests, searches
and seizure in so far as they are not inconsistent with the provisions of the NDPS
Act. Section 165 of the Code
confers powers on the police to search any place
without search warrant. 'Place' has been defined in Section 2(p) of the Code as
one which includes house, building, tent, vehicle and vessel. Section 165 of the
Code empowers a police officer making an investigation
to conduct search
without a warrant if he has reasonable grounds for believing that anything
necessary for the purpose of an investigation
into any offence may be found and
that he is of the opinion that undue delay may frustrate the object of the search.

Further, Section 100 of the Code lays down the detailed procedure and
guidelines regarding the manner in which search is to be conducted
of a closed
place.

In the present case, the learned Counsel for the appellant contended that
the police officer did not prepare the seizure mahazar
at the spot and thereby
violated the provisions of law. Therefore, it is argued that the evidence collected
by the prosecution was
not admissible. The learned Counsel further contended
that the directions contained in the Standing Instructions issued by the Narcotics
Control Bureau were not complied with. Our attention was drawn to clause 1.5 of
the Standing Instruction No. 1/88 issued by the Narcotics
Control Bureau, New
Delhi, which is to the following effect :-
" Place and time for drawal of sample
Samples from the Narcotic
Drugs and Psychotropic
Substances seized, must be drawn on the spot of recovery, in
duplicate, in the presence of search(Panch) witnesses
and the
person from whose possession the drug is recovered, and a
mention to this effect should invariably be made in the panchnama
drawn on the spot."
The learned Counsel for the appellant also pointed out to us Clause 3.8
of the Standing Order No. 2/88 issued
by the Narcotics Control Bureau, New
Delhi, which reads as follows :-
Each seizing officer should deposit the drugs fully packed
and sealed with his seal in the godown within 48 hours of seizure
of such drugs, with a forwarding memo indicating:

(i) NDPS Crime No. as per crime and prosecution register
under the new law (i.e. NDPS Act)
(ii) Name (s) of accused
(iii) Reference
of test memo
(iv) Description of drugs in the sealed packages/containers and
other goods, if any
(v) Drug-wise quantity in each
package/container
(vi) Drug-wise number of packages/containers
(vii) Total number of all packages/containers
The learned Counsel
for the appellant contended that these instructions
issued by the Narcotics Control Bureau, New Delhi, were not followed and the
seizure memo was not prepared at the spot and there was delay in depositing
the seized drug in the godown. It was argued that this
has caused serious
prejudice to the accused and therefore, his conviction is vitiated on that account.

The instructions issued by the Narcotics Control Bureau, New Delhi are to
be followed by the officer in-charge of the investigation
of the crimes coming
within the purview of the NDPS Act, even though these instructions do not have
the force of law. They are intended
to guide the officers and to see that a fair
procedure is adopted by the officer in-charge of the investigation. It is true that
when a contraband article is seized during investigation or search, a seizure
mahazar should be prepared at the spot in accordance
with law. There may,
however, be circumstances in which it would not have been possible for the
officer to prepare the mahazar at
the spot, as it may be a chance recovery and
the officer may not have the facility to prepare a seizure mahazar at the spot
itself.
If the seizure is effected at the place where there are no witnesses and
there is no facility for weighing the contraband article
or other requisite facilities
are lacking, the officer can prepare the seizure mahazar at a later stage as and
when the facilities
are available, provided there are justifiable and reasonable
grounds to do so. In that event, where the seizure mahazar is prepared
at a later
stage, the officer should indicate his reasons as to why he had not prepared the
mahazar at the spot of recovery. If
there is any inordinate delay in preparing the
seizure mahazar, that may give an opportunity to tamper with the contraband
article
allegedly seized from the accused. There may also be allegations that the
article seized was by itself substituted and some other
items were planted to
falsely implicate the accused. To avoid these suspicious circumstances and to
have a fair procedure in respect
of search and seizure, it is always desirable to
prepare the seizure mahazar at the spot itself from where the contraband articles
were taken into custody.

In the present case, though the article was seized from the accused while
he was travelling in a truck, no seizure mahazar was prepared
at that time. The
accused persons were taken to the office of customs and the seizure mahazar
was prepared at the office of customs.
The learned Single Judge of the High
Court held that no prejudice was caused to the appellant. The learned Counsel
for the appellant
contended that NDPS Act being a special Statute with provision
for severe punishment on the accused found guilty of the offences
punishable
thereunder, the procedure established by law for search and seizure is to be
strictly complied with and any failure to
comply with such procedure is to be
viewed seriously and any evidence collected shall be made inadmissible under
law.

Whether evidence collected by illegal search or seizure is admissible or
not was considered by this Court in series of decisions
and one of the earliest
decisions is the decision of the Constitution Bench in Pooran Mal vs. The
Director of Inspection (Investigation),
New Delhi and others, etc.etc.

1974(1) SCC 345. Though the search in that case was done under the
provisions of the Income Tax Act, it is apposite to note the
following observation
made by this court:-
"So far as India is concerned its law of evidence is modelled on the
rules of evidence
which prevailed in English Law, and Courts in
India and in England have consistently refused to exclude relevant
evidence merely
on the ground that it is obtained by illegal search
or seizure."
Bench of this Court extensively considered the question whether
the procedure
laid down under Section 50 of NDPS Act is mandatory or not. It was held that
the judgment in Pooran Mal case cannot
be understood to have laid down that an
illicit article seized during a search of a person, on prior information, conducted in
violation
of the provisions of Section 50 of the Act, can by itself be used as
evidence of unlawful possession of the illicit article on the
person from whom the
contraband has been seized during the illicit search. In paragraph 45 of the
Judgment, Dr. A.S. Anand(Chief
Justice) held as under:-
"..Prosecution cannot be permitted to take advantage of its own
wrong. Conducting a fair trial for those
who are accused of a
criminal offence is the cornerstone of our democratic society. A
conviction resulting from an unfair trial is
contrary to our concept of
justice. Conducting a fair trial is both for the benefit of the society
as well as for an accused and
cannot be abandoned. While
considering the aspect of fair trial, the nature of the evidence
obtained and the nature of the safeguard
violated are both relevant
factors. Courts cannot allow admission of evidence against an
accused, where the court is satisfied that
the evidence had been
obtained by a conduct of which the prosecution ought not to take
advantage particularly when that conduct had
caused prejudice to
the accused. If after careful consideration of the material on record
it is found by the court that the admission
of evidence collected in
search conducted in violation of Section 50 would render the trial
unfair then that evidence must be excluded.."
In State of H.P. vs. Prithi Chand and Another 1996(2) SCC 37, it was
held that it would thus be settled law that every deviation
from the details of the
procedure prescribed for search does not necessarily lead to the conclusion that
search by the police renders
the recovery of the articles pursuant to the illegal
search irrelevant evidence nor the discovery of the fact inadmissible at the
trial.

Weight to be attached to such evidence depends on facts and circumstances in
each case. The court is required to scan the evidence
with care and to act upon
it when it is proved and the court would hold that the evidence would be relied
upon.

In Radha Kishan vs. State of Uttar Pradesh AIR 1963 SC 822 this Court
held that the evidence obtained by illegal search and seizure
would not be
Natwarlal Damodardas Soni 1980(4) SCC 669 it was held that even if the
search was illegal, it will not affect the validity
of the seizure and further
investigation of the authorities or the validity of the trial which followed on the
complaint by the customs
officials.

Law on the point is very clear that even if there is any sort of procedural
illegality in conducting the search and seizure, the
evidence collected thereby will
not become inadmissible and the Court would consider all the circumstances and
find out whether any
serious prejudice had been caused to the accused. If the
search and seizure was in complete defiance of the law and procedure and
there
was any possibility of the evidence collected likely to have been tampered
with or interpolated during the course of such
search or seizure, then, it could be
said that the evidence is not liable to be admissible in evidence.

In the present case, though the mahazar was not prepared at the spot
where the accused persons were found to be in possession of
the contraband
article but the same was done only at the Office of the Customs Department
while the accused persons were very much
present throughout, there was no
allegation or suggestion that the contraband article was, in any way, meddled
with by the officers.
Therefore, we are of the view that the appellant has rightly
been found to be in possession of the opium. We find no reason to
interfere with
the conviction and sentence entered against the appellant. The appeal is
dismissed accordingly.

J.

(R.P. SETHI)
J.

(K.G. BALAKRISHNAN)
March 20, 2002.

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